Exporting copyright: Inside the secretive Trans-Pacific Partnership

Meet "ACTA plus," and the people trying to stop it.

Extending copyright terms

Another TPP issue, as Band and others point out, is that different countries have different lengths for copyright. Under TPP, the US policy looks to be the minimum.

“The term shall be not less than the life of the author and 70 years after the author’s death,” states the 2011 draft under Article 4, Section 5, subsection A.

While this figure puts the TPP in line with existing American copyright law, it would require a 20-year extension for all the TPP negotiating parties except Peru, Singapore, and the United States, which already have the “life plus 70” provision. For works created by a corporation, this limit would be extended to 120 years, putting these countries in agreement with the so-called “Mickey Mouse Provision” of the Copyright Term Extension Act (CTEA) of 1998.

For some countries, the pressure is unwelcome. In an interview on May 9 with Chilean business newspaper Diario Financiero (Google Translate), Rodrigo Contreras, the directorate general of Chile’s International Economic Relations (Direcon), seemingly threatened to pull out of the TPP negotiations due to American pressure over the IP provisions in the agreement.

The failure to come to an agreement so far, Contreras said, “is one of the issues with which we have had a more moderate [position than the US], precisely because of the complexity of the issue and the implications of that discussion. Not for nothing is [intellectual property] one of the tables that attracts more participants. They are discussing the latest trends and positions on intellectual property in the world and, therefore, extensive internal analysis of the legal complexity is required.”

Members of the resistance: Sean Flynn, Jonathan Band, Gwen Hinze

Temporary copies

Another major bone of contention with the TPP is proposed language over “temporary copies”—like copies of that file that your computer stores while you’re streaming, buffering, or caching something. (Such provisions could affect Spotify, Pandora, Hulu, Netflix, and any number of other similar services.)

“Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form),” reads Article 4, Section 1.

That part is quite worrisome, according to many civil and digital rights groups, as it could grant rightsholders a veto over all sorts of digital uses of content, many of which rely on buffer or temporary copies to function.

“This was discussed but rejected at the intergovernmental diplomatic conference that created two key 1996 international copyright treaties, the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty,” the EFF wrote on its website.

The issue isn't merely abstract. Three years ago, the US Supreme Court declined to hear a case that had been decided earlier at the 2nd Circuit Court of Appeals. In that case, Cablevision (a New York-area cable company) built a remote, data-center-based DVR, and various TV networks sued in an attempt to stop it. In short, the appeals court found, as Techdirt reported, “[that] a remote DVR was legal and that buffer copies were not infringing.”

“That is a major area [of TPP] as jumping out as being inconsistent with US law,” Rashmi Rangnath, a staff attorney at Public Knowledge, told Ars.

She also pointed out in a February 2012 blog post that temporary copy provisions could mean that “services such as Pandora could get much more expensive when rightsholders demand higher license fees to compensate them for the ‘additional’ copies.”

Don't break that DRM

Finally, we come to the question of digital locks, or digital rights management (DRM). As we have documentednumeroustimes here on Ars, legal rulings in the United States have allowed for digital locks to be broken in certain circumstances, legalizing, famously, jailbreaking an iPhone.

“For example, there’s one provision in the DMCA that talks about prohibiting trafficking devices for purposes of circumvention, and in TPP there is a provision that is almost the same but it adds ‘enabling or facilitating,’ so it expands circle of liability—it does this little by little throughout the chapter,” said Jodie Griffin, a staff attorney at Public Knowledge, in an interview with Ars.

Beyond broadening who could be targeted under possible violations of this law, the leaked draft made no provisions for exceptions for blind users.

“The TPP would prevent the blind from reading DRM protected ebooks and the deaf from inserting closed captioning onto DRM-protected DVDs,” Rangath wrote back in February. “In the US, the Copyright Office has made rules in the past that allows the blind to break this DRM. But the continuation of these rules is not a guarantee. And the other TPP countries could fail to make similar rules.”

Do not back up; severe tire damage!

In the end, one of the key sticking points for those who have been watching the TPP proceedings from the sidelines is that if the agreement does eventually pass, it becomes much harder to enact future IP legal reforms by any member state without corresponding action from the others—unless they're simply willing to pull out of TPP (which contains all sorts of provisions, most not involving copyright at all).

“Having these agreements will prevent the US from reforming its laws down the line if Congress wants to look again at the DMCA,” Rangath added.

In other words, any realistic hope for returning to pre-1998 levels of copyright term limits would be dashed.

But working on issues like TPP is hard work in an Internet age addicted to memes, multitasking, and shiny gadgets. Any process that takes years to unfold favors those with the cash and the economic interest to stick it out.

“The very fact that it’s this very slow, time-consuming process, at some level, does favor the large entrenched interests,” Jonathan Band argued.

“The problem with Congress isn't that some people have better access. Someone needs to be willing to devote resources over a very long period of time to affect the outcome; you can’t parachute in once or twice. That’s where the public is at a huge disadvantage to the special interests, and especially corporations that have a huge economic interest. they’re the ones that have the staying power to see a process to the end—and that’s even more so with the international agreements.”